Nguyen and Australian Postal Corporation
[2006] AATA 262
•20 March 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 262
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/717
GENERAL ADMINISTRATIVE DIVISION ) N2004/970
N2005/75Re DIEN BUU NGUYEN Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Senior Member, Mrs Josephine Kelly and Dr Max Thorpe Date20 March 2006
PlaceSydney
Decision The decision under review is set aside in each proceeding and the matter is remitted for reconsideration in accordance with our findings.
[sgd] Senior Member, Mrs Josephine Kelly
Presiding Member
CATCHWORDS
WORKERS COMPENSATION – Injury to left ankle - Claims for permanent impairment to left ankle, medical expenses,and incapacity arising from physical injury – Claim for depression caused by injury to left ankle – Applicant has permanent impairment to left ankle for loss of range of joint movement – Entitled to medical expenses for pain in left ankle – No incapacity from physical injury - Applicant does suffer from depression – Depression results in partial incapacity – Entitled to medical expenses for depression – No permanent impairment arising from depression - Decisions set aside and matters remitted.
LEGISLATION
Safety, Rehabilitation and Compensation Act1988 ss 14,16,19, 24 and 27
REASONS FOR DECISION
20 March 2006 Senior Member, Mrs Josephine Kelly and Dr Max Thorpe Introduction
1. Mr Nguyen, the Applicant, arrived in Australia in 1988 as a refugee from Vietnam where he had been a successful professional full-time actor. He was born in 1957. While working for the Australian Postal Corporation (“APC”), Mr Nguyen fractured his left ankle (“the injury”) on 18 July 2002.
2. There are three sets of proceedings before the Tribunal relating to the injury. As set out below, abbreviated references are used in this decision to indicate the evidence in the documents produced pursuant to s 37 of the Act (known as the “T” documents) in each proceeding.
3. Proceeding N2004/717 (“P 717”) concerns the reviewable decision dated 24 May 2004 (P717 T61) which affirmed three previous determinations. These determinations related to the left ankle and they were:
· 5 August 2003 (Exhibit R6) which implicitly determined that he was fit to return to his pre-injury position, but because of his manager’s wishes and Mr Nguyen’s preference for his temporary position, he was to continue in that position but would be expected to return to his nominal position when that temporary position finished. It also stated that “you are no longer entitled to make up pay as you are working the full hours and duties of your admin position”;
· 12 January 2004 (P717 T55), which enclosed the determination of 5 August 2003, but “to leave the matter beyond doubt” determined that from 21 July 2003 APC ceased to be liable to pay compensation under s 19 of the Safety Rehabilitation and Compensation Act 1988 (“the Act”) in respect of any difference between Mr Nguyen’s Normal Weekly Earnings and his actual earning.
· 13 January 2004 (P717 T56), which refused Mr Nguyen’s claim for permanent impairment pursuant to s 24 and s 27 of the Act.
4. Proceedings N2004/970 (“P 970”) concerns the reviewable decision dated 22 July 2004 (P970 T7) which affirmed the determination dated 9 July 2004 (P970 T5) that no liability exists under s 19 of the Act in respect of incapacity payments or make-up pay and that Mr Nguyen had “ceased to suffer from the effects of your left ankle condition caused by an injury on 18.7.02 and accordingly Australia Post has no present liability to pay compensation under Sections 16, 19, 24, 27 and 29 of the SRC Act”.
5. Proceedings N2005/75 (“P 75”) concerns the reviewable decision of 14 January 2005 (P75 T13) which affirmed the determination made on 1 December 2004 (P75 T11) denying liability for chronic pain/depression secondary to fractured ankle.
6. There has been a previous decision of this Tribunal dated 27 November 2003 (P717 T49) in relation to Mr Nguyen’s injury to his left ankle. The decision was made by consent. It affirmed the determination dated 6 November 2002 (P717 T22) that Mr Nguyen was to commence a rehabilitation program on 6 November 2002 which lasted to 29 November 2002 working four hours per shift five days a week on specified selected duties. The decision also varied a determination of 2 December 2002 to have the effect that Mr Nguyen was fit to participate in a return to work program from 2 December 2002 to 13 January 2003 working four hours per day on restricted duties, and on and from 14 January 2003 he was fit to participate in the return to work program dated 6 November 2002.
Issues
7. The issues in these proceedings are whether as a consequence of the injury, Mr Nguyen has:
(a) continued to suffer incapacity since 21 July 2003,
(b) a permanent impairment in his right ankle,
(c) chronic pain/depression secondary to the fractured ankle.
Mr Nguyen’s Evidence
8. Following is a summary of Mr Nguyen’s oral evidence which was given through an interpreter. After arriving in Australia, he worked in factories, delivered goods to the fish market, owned a restaurant and continued his acting career when parts were available. He obtained a forklift driver’s licence before joining APC in November 1997. He first worked as a mail sorter, and then transferred to a parcel centre where he drove a forklift and sorted parcels. The forklift driving involved taking parcels from the dock to where they were sorted and after they were sorted, taking them back to the dock to a truck for delivery. He stood while driving the forklift using his hands and right leg to operate it. He used his right leg to press a pedal.
9. The injury occurred while he was standing in the forklift picking up a lot of parcels in front of him. Another forklift carrying two containers which the driver could not see over, drove forward instead of reversing, and hit him from behind. The edge of a container jammed into the back of his left heel. An ambulance was called. Dr Newman, orthopaedic surgeon, carried out surgery on 2 August 2002.
10. Mr Nguyen said that over the next few months his foot was plastered. It was weak when the plaster was removed. He said the pain was constant and prolonged. He had to use a lot of strong medication such as Panadeine Forte to kill the pain. During the first year he had pain at the site of the scar and in the left foot. The medication affected his stomach and he could not eat, and vomited easily. In the first year he lost 8 kgs. He could not do anything at home and his wife did everything. He said that he cannot do heavy work and cannot walk a lot. He is easily fatigued. He stopped travelling a lot and stopped acting as he could not appear before an audience with a stick in his hand or using crutches. He has not resumed acting because he has not recovered to the condition he was in before the accident. His condition is an obstacle to acting because it included singing, dancing and fighting.
11. In July 2003 Dr Newman carried out an arthroscopy, removed a screw and cut adhesions in and around the left ankle joint. Mr Nguyen described to us how during that operation a camera was used on the outside of his left ankle and that he has pain there as well as the other side and up the front of his leg since. In re-examination he said that he first experienced pain that radiated up his shin after he awoke from the anaesthetic after his first operation.
12. He said that the injury has had a big impact on his relationship with his family. After the accident he became irritated and hot tempered for no reason. He could scream at his wife at any time and they have not been intimate since the accident. Before the injury he was a father and friend to his only son and they used to play actively, such as running with kites and playing football. He taught his son kung fu and they fought each other. He cannot do those things now.
13. In relation to his family members outside Australia, Mr Nguyen said that he no longer sees his mother and has no contact with her or his younger brother who lives with her. He was a famous performer in Vietnam and she was very proud of him and his appearance. He did not want to hurt her by her knowing that he had “become like this”. He could not contact her when he had not fully recovered. He could not lie to her. In cross-examination he denied his explanation was not plausible and that it was not the real reason for not calling his mother in 2002 and 2003. He has very low self esteem because of his condition which has caused him to become withdrawn. He had psychiatric assistance from Dr Law on the referral of his general practitioner. He feels unsettled and had a sadness “in his spirit”. He saw Dr Law two or three times but stopped seeing him when compensation payments for Dr Law were stopped. He wishes to have further treatment but he cannot pay for it. He sometimes took medication to help him sleep but does not use medication much as he does not want the tablets to affect his nervous system. He does not feel alert when he awakes after taking sleeping medication.
14. He denied that he had a debt from when he finished with his restaurant, which had been recorded by Dr Haik. His current debts are a home loan of approximately $260,000. The house was purchased in 2002 for $310,000. He also has a credit card debt of $27,000. His wife is employed.
15. He said he was offended by Dr Haik’s suggestion that he was presenting himself in a particular role to get compensation. He would never want to exchange the health of his body to get money. He wished he had a normal life.
16. He returned to APC three months after the injury. For the first two years he worked in the office working with a computer. He started back for four hours a day which was increased to five hours a day and then full hours. He currently works in an office at the Chullora Parcel Centre from 4 pm to 11 pm. His tasks include coding and labelling. It is a temporary position. He has no heavy duties and is seated while he works. He does not think that he can return to driving the forklift because of his health. He could not copy with standing. Secondly, he is also ‘in fear‘ when he sees a forklift. In his previous position he did overtime nearly every day and it was a significant part of his income. No overtime is available to him at present, although the basic pay is the same.
17. His ankle causes difficulties for him which he did not experience before the injury. He cannot stand or walk for long. His weight is no longer divided equally between his legs but is concentrated on one leg. He now climbs stairs slowly, using the handrail. He walks up slopes with difficulty as his left leg feels awkward and he suffers pain. He needs a stick to help him walk a lot or up a slope over a rough path.
18. Mr Nguyen said that he felt a little bit of pain in his ankle on the day of the hearing and when it is cold or wet it causes him a little bit of pain. In re-examination he said that when he is in pain, walking is less comfortable than when he is in less pain. The level of pain has been the same since the third year.
19. In cross-examination he agreed that his symptoms were getting better in 2002 and 2003 and that in the weeks and months after the accident he expected his ankle would improve, perhaps completely. He said in the third year it stopped improving.
20. He also agreed that he attended doctors without an interpreter and conversed with them in English, and that he communicates with fellow employees in English and when he goes to shopping centres and the like. In response to the suggestion that he believed he can communicate freely in English, he replied that he tried his best but he thinks his English is not good enough. He said that “Court is important” and we understood him to say that one wrong word could be bad for him. He initially agreed that he did not tell his solicitors that he needed an interpreter when he saw doctors but later said that he thought he mentioned it once but was told his English was quite good. He said that he never completely trusted that he had fully “conversed” his thoughts to the doctors and that he did raise that with them. He said he did not know the meaning of the English word ’stiff‘ until Mr Chen, who appeared for APC, told him. He also said he had used the word ‘swollen’ but not ‘swelling’.
21. Mr Nguyen denied that had not complained to the doctors he saw, of pain in the area he had demonstrated to the Tribunal during the hearing. He also denied exaggerating his inability to move his foot upwards to benefit his case, and overstating the effect of his limp, for example when he saw Dr Dalton. He said that he had never said that his ankle moved fully since the accident.
22. Mr Nguyen was asked about nominating for a position in a post office when his former workplace closed down. He said he applied because it was closer to his home and that he was nominating a location not a position. He denied that he could stand at a counter. He believed that post offices had various positions and that APC knew his situation and would give him a suitable position.
Medical Evidence
23. There was a plethora of medical evidence in these proceedings. Following is a summary of it.
Dr Newman
24. We had the benefit of Dr Newman’s oral evidence and numerous, almost monthly, reports while he was treating Mr Nguyen during the period 26 July 2002 to 12 December 2003 (see T documents and Exhibit A2); and reports prepared for medico-legal purposes (P 717 T58, Exhibit A3). Dr Newman was Mr Nguyen’s treating surgeon. He confirmed in his oral evidence that the saphenous nerve had been crushed during the injury, but that that would only affect sensation ’downstream‘ of the injury site towards the big toe. He said that Mr Nguyen may continue to have numbness in the distribution of the nerve but that the injury to that nerve does not account for his incapacity or the pain he currently experiences. He also does not consider that Mr Nguyen suffers from chronic regional pain syndrome and gave persuasive reasons for that conclusion. He also excluded reflex sympathetic dystrophy.
25. Dr Newman performed an arthroscopic evaluation of the ankle on 29 July 2003, together with a simple removal of the 2 screws transfixing the medial malleolus. He found dense adhesions both in and outside the joint and excised them. All joint surfaces were ‘entirely normal in appearance’. In his oral evidence, he said that adhesions in the joint can cause pain and affect both dorsi and plantar flexion. He removed the adhesions but said they can recur although they should not because the patient is free to move the ankle. Adhesions form when the ankle is not moved and therefore the likelihood of recurrence is greater if the patient fails to move the joint. In Mr Nguyen’s case, disuse has led to a reduced range of movement. Dr Newman said that there was no organic cause of the pain Mr Nguyen complained of and did not believe that adhesions were causing that pain. He did not consider that a further arthroscopy was necessary. He agreed that a psychiatric condition can impact on one’s perception of pain. The reason he stated that Mr Nguyen could not go back to his former job, which involved standing, was because of the pain of which he complained.
26. In his 27 January 2006 report (Exhibit A3), Dr Newman provided an assessment based on an examination in October 2005 and gave oral evidence in relation to it. He noted Mr Nguyen’s apparent distress bearing weight, no ankle swelling and diffuse tenderness which appeared a little exaggerated, as it was above and below the injury site. There was a loss of movement in the ankle. Mr Nguyen was entirely compliant. He assessed impairment under Table 9.5 (Musculoskeletal System – Limb Function - Lower Limb) as 20% and 10% under Table 9.2 (Musculoskeletal System – Lower Extremity). Dr Newman stated that a person with the range of movement Mr Nguyen had, could run and play sport.
27. In cross-examination Dr Newman agreed that in his report of 12 December 2003 the motion of Mr Nguyen’s ankle was satisfactory. In fact he stated in the report “the ankle moves through an entirely full range of motion with no apparent irritation at the extremes”. Dr Newman agreed that his report of 12 December 2003 was the first time there had been complaint of pain on the outside of the ankle and symptoms radiating up to the shin. In that report Dr Newman said: “I am not convinced that this is all genuine, as all palpation about the ankle and distal leg was accompanied by a degree of inappropriate grimacing”. He concluded, “I have nothing else to offer in terms of his ongoing management”.
28. Also in cross-examination, Dr Newman agreed that he had significant reservations about Mr Nguyen’s presentation in late 2003. He said pain is a subjective phenomenon and you cannot rule out fabrication or lack of genuineness. He agreed that his assessment of function in relation to Table 9.5 was based on Mr Nguyen’s complaints.
Dr Lethlean
29. Dr Lethlean, a neurophysiologist, prepared reports dated 29 August and 5 September 2005 (Exhibit A1) and gave oral evidence by telephone. He examined Mr Nguyen on 29 August 2005 and reviewed X-rays from 2002 and a bone scan conducted the previous week. Following is a summary of his opinion. Mr Nguyen has low grade degenerative arthritic change involving the left tibio-talar joint anteromedially. He suffered from ankle pain that increased when walking or in cold weather, and had a reduced range of left ankle movement. These symptoms and restrictions would probably continue with little change, and it was ‘possible that further arthritic change (would) develop’. Mr Nguyen’s condition was directly attributable to the injury sustained on 18 July 2002. Dr Lethlean explained during his oral evidence that Mr Nguyen’s loss of sensation at the inner ankle and up the shin towards the knee were caused by damage to the saphenous nerve. However, only the loss at the medial aspect of the ankle was related to the injury. Although loss could occur further down the foot towards the great toe, there was no history of pain in that area. He acknowledged that he had assumed consistency in complaint of pain and that he was dependent on what Mr Nguyen told him and that the patient is in control of dorsiflexion and plantar flexion.
30. Using the Comcare Guide, Dr Lethlean ascribed 15% whole person impairment under Table 9.2, and 20% whole person impairment under Table 9.5. Mr Nguyen was unable to return to his pre-injury work, and his position when he saw him appeared appropriate to his current medical condition.
31. Dr Lethlean reviewed the reports of Drs Ganora, Newman, Griffith, Morse, Haik, Dalton and Whittaker on 5 September 2005 and reaffirmed his opinions expressed in his earlier report.
Dr Griffith
32. Dr Griffith, consultant surgeon, gave evidence by telephone as well as in his reports dated 18 May 2004 and 9 April 2005. He professes some expertise in chronic pain management, including in orthopaedics. In his oral evidence, Dr Griffith said Mr Nguyen is “pain focussed” and is extremely apprehensive that he will cause further injury if he moves the ankle. He said that adhesions were more probable than possible in a patient who is reluctant to use the joint. He attributed his finding of no dorsiflexion to capsular contraction or adhesion and said that Mr Nguyen’s ankle could be considered to be at an ’end point’ if nothing further was done.
33. He noted that the prognosis of the fractures was excellent as they had long resolved. The prognosis of the chronic pain state was less certain but further treatment was possible. The prognosis of Mr Nguyen’s depression was excellent. Dr Griffiths considered that Mr Nguyen was not fit for his previous occupation as a parcel post officer and assessed a 5% permanent impairment of the left ankle joint pursuant to Table 9.2 of the Comcare Guide, and a 10% permanent impairment of the left ankle pursuant to Table 9.5. However, he considered Table 9.5 to be excessively generous, as it was dependent on the statement of the patient unless tested by an occupational therapist using a treadmill and steps, and was too open to interpretation and assessment. If you accepted Mr Nguyen’s statements, he would have a 20% whole person impairment but he discounted that figure because of the pain behaviour patterns which in his opinion did not amount to malingering.
34. In his 9 April 2005 report, Dr Griffith commented on the earlier reports of Dr Whittaker and Dr Dalton. He concluded that due to a “failure to take into account the possibility of capsular adhesions, which is a more than adequate explanation for the restricted movement, this aspect of the diagnosis has been missed and that any restrictions seen have been put down entirely to functional causes”.
35. In the later report Dr Griffith amends his opinion about range of movement because of typographical errors in his first report, assessing Mr Nguyen as having a 15% permanent impairment under table Table 9.2. He confirmed 10% permanent impairment under Table 9.5.
36. In cross-examination Dr Griffith agreed that he had assumed that Mr Nguyen had suffered diffuse pain in the left lower limb since his injury or surgery.
Dr Pham
37. Mr Nguyen’s general practitioner was Dr Pham, who gave oral evidence and from whom two reports were in evidence dated 22 November and 2 December 2003. He said that he had initially prescribed Keflex and Panadeine for Mr Nguyen’s pain, and later Tramal and Paracetamol. More recently, for about a year, his condition had stabilised and the regular treatment is Paracetamol and if severe, Dr Pham advised Tramal, which he last advised him to take on 20 October 2005, although he could not find a record of the last time he prescribed it.
38. He referred Mr Nguyen to Dr Law, psychiatrist in December 2002 because he had developed depression as a result of his injury and the treatment he had received from APC’s rehabilitation team. Dr Pham said that harassment by that team caused Mr Nguyen to be anxious, angry, depressed, suffer headaches, and have a poor appetite. He was also irritable with his wife and child and slept poorly at that time. He returned to work on 1 November 2002 and by December he was to work 4 hours a day and the team constantly pushed him to do more work and return to pre-injury duties, rather than work on his mobilisation.
39. In the last year his psychiatric status had improved. During that time, Mr Nguyen usually saw Dr Pham because of complaints of pain in his ankle and to get medical certificates for days off work. The only symptom relating to his mental state was about sexual problems with his wife on 5 January 2004. Mr Nguyen had previously complained of sexual problems in 1999 when he had been tested and medication had been prescribed. He has given no other referral to Mr Nguyen for psychiatric treatment because since APC denied that condition, Mr Nguyen has told him he cannot afford it.
40. Dr Pham considered Mr Nguyen unsuitable for his pre-injury duties because of chronic left ankle pain and his lack of mobility such that he would not be stable standing on the forklift and would risk further injury to himself and others if he did that work. He had encouraged him to remain active and use his ankle and not rely on his walking stick.
Dr Ganora
41. Dr Ganora, a Consultant in Rehabilitation Medicine, prepared a report on 17 April 2003. He found that Mr Nguyen was still in the stages of recovery following the July 2002 accident and that his present condition was “consistent with the nature of the injury”. He found Mr Nguyen to be unfit for his former work but “anticipated that further recovery will occur and it is quite possible that he will eventually be able to resume all usual physical activities”. As the condition had not yet stabilised, he deferred a calculation of physical impairment. Dr Ganora recommended Mr Nguyen obtain advice regarding further management from his treating orthopaedic surgeon and an assessment from a consultant psychiatrist regarding his feelings of harassment relating to returning to his previous work.
Dr Dalton
42. Dr Dalton is a consultant in rehabilitation medicine. He saw Mr Nguyen on 1 July 2003, 5 October 2004 and 1 November 2005 and prepared reports in relation to each examination. At the time of the July 2003 examination, he found the cause of Mr Nguyen’s persistent pain to be unclear but suggested it may be due to a degree of fear avoidance and pain behaviour on the part of Mr Nguyen. Dr Dalton considered Mr Nguyen capable of returning to work in his former capacity and full time hours, although he advised some restrictions including to ”avoid prolonged weight-bearing on uneven surfaces”, and said that “he would have some difficulty negotiating stairs or inclines on a repetitive basis.” Dr Dalton did not believe his injury prevented Mr Nguyen from driving a forklift or sorting. Any reason for limited weight-bearing tolerance was described as ‘unclear’.
43. Dr Dalton commented that the only likely long-term effect of Mr Nguyen’s condition was a possible loss of motion at the left ankle. He described the risk of Mr Nguyen developing post-traumatic osteoarthritis later in life as ‘increased’ but ‘mild’. He did not consider any further treatment to be necessary but recommended the continuation of a home exercise program and the use of analgesic or anti-inflammatory medicine when needed.
44. Following the October 2004 examination, Dr Dalton reaffirmed his opinion of July 2003, however, he found an increase in the range of motion in Mr Nguyen’s left ankle since the 2003 examination. He said that Mr Nguyen had a ‘degree of functional overlay’, demonstrated ‘inconsistent’ tenderness, an ‘exaggerated’ limp and residual stiffness from a ‘seemingly uncomplicated fracture’. He stated that Mr Nguyen suffered from ongoing effects of the injury, namely, muscle wasting and residual stiffness. He noted that Mr Nguyen’s progress had not followed the expected pathway of recovery due to these effects, which is indicated by a degree of stiffness. Dr Dalton conceded this may not resolve but would diminish with time and exercise. This was the only further treatment deemed necessary.
45. Dr Dalton again found Mr Nguyen to be capable of returning to work in his former capacity on a full time basis. He noted that he should avoid prolonged weight-bearing on uneven surfaces and that he may experience difficulties with repetitive climbing. Dr Dalton would only speculate on whether the reduced tolerance of weight-bearing would be permanent.
46. Dr Dalton said that Mr Nguyen’s prognosis was dependent upon whether or not he was at risk of developing post-traumatic arthritis, and he recommended a bone scan. He listed fear avoidance behaviour, functional overlay and psychosocial factors as elements contributing to delayed recovery.
47. At that time, Dr Dalton assessed Mr Nguyen as having as having 0% whole person impairment pursuant to Table 9.5 of the Comcare Guide and 5% whole person impairment pursuant to Table 9.2. Dr Dalton noted that 5% whole person impairment pursuant to Table 9.2 could be reasonably considered to be the maximum degree of permanent impairment arising from the compensable condition. He found that there was difficulty in assessing Mr Nguyen’s rating under Table 9.2 as it is based largely on loss of joint motion which appeared to have varied considerably, and had changed since the last consultation in July 2003.
48. Dr Dalton found a reasonable consistency in the examination of the range of movement at the 2005 examination. He used a goniometer and assessed a 5% whole person impairment under Table 9.2, and found that Mr Nguyen was capable of resuming his pre-injury work. Dr Dalton said that using a goniometer to measure the range of movement reduces error, compared to a visual assessment, although there may be some degree of error. He considered that function could be improved.
49. He found Mr Nguyen’s presentation was different from what it was in October 2004 when he had normal sensation around his ankle and lower limb. In 2005 he complained of loss of sensation of which he had not previously complained.
50. In his report following the 2005 examination, Dr Dalton expressed the view that Mr Nguyen does not suffer from any form of chronic pain condition, including regional pain syndrome, reflex sympathetic dystrophy and complex regional pain syndrome.
51. Dr Dalton considered that the range of movement Mr Nguyen had in his ankle meant he could walk up and down stairs and slopes with no difficulty. However, his reports of pain were a different question. Consistency of reaction to tenderness was important to determine inflammation. He found Mr Nguyen’s reactions were variable. Similarly, there were inconsistencies in Mr Nguyen’s limp.
52. Dr Dalton agreed in cross-examination, that if a joint is not moved, it can lose mobility. He also conceded that the bone scan report was consistent with low grade degenerative arthritis which was consistent with his expectation. Pain is not always present in arthritis, but may be. He stated that Mr Nguyen’s loss of function was disproportionate to the underlying physical condition. He did not record anything specifically about Mr Nguyen’s mental state following the 2004 and 2005 examinations. He said that Mr Nguyen did not appear to be depressed or anxious, “in many ways his manner was surprisingly upbeat”. When questioned about his view in 2003, four weeks before Dr Newman carried out an arthroscopy and removed adhesions, that intervention was not required, Dr Dalton stated you would need to know why Dr Newman removed the plates, and stated that whether the surgery impacted on Mr Nguyen’s recovery was debatable.
Dr Chase
53. Dr Chase is an occupational physician. He gave oral evidence and had also prepared a number of reports which were in evidence. They were dated 15 September 2002, 29 January 2003, 29 June 2004 and 27 November 2005. He accepts that the effects of the injury have not ceased and that it was possible Mr Nguyen may suffer aches and pains intermittently for the rest of his life but he found no incapacity for work, which was his finding also in his June 2004 report. The only treatment he suggested was Paracetamol for pain. He described Mr Nguyen’s prognosis as “excellent”. He conceded that Mr Nguyen probably had some early degenerative arthritic change in his ankle but disputed the high degree of disability. He said that Mr Nguyen complains of chronic pain “but there are no objective indicators to support his allegations”. He noted his “self-induced” limping.
54. Dr Chase assessed impairment under Table 9.2 as 5% as Mr Nguyen had a loss of less than half-normal range of movement of ankle. He said it was difficult to assess him under Table 9.5. If his account were to be believed, his impairment would be between 20% and 30%. Dr Chase said that Mr Nguyen has no signs of muscle wasting, and has the same calluses on his feet and tread wear and tear patterns on both his shoes. From this he would discount the limp and assign a 0% impairment rating under Table 9.5. He said: “As long as he is supported in his alleged disability he will continue to complain of pain and alleged disability”.
55. Dr Chase said that mobilisation was the most important thing for Mr Nguyen and to normalise all activities would be to his physical and psychological benefit. In his opinion, the cause of Mr Nguyen’s problem was a failure to mobilise. He agreed that at his 29 June 2004 examination, Mr Nguyen’s anxiety and tearfulness was a reflection of his psychological state at that time, it appeared to be impacting on his injury but that was not his field. Dr Chase’s assessment of Mr Nguyen’s range of movement was visual. He could not exclude malingering.
56. In cross-examination, he said that the impairment which he found, less than 50% loss of range of movement, was essentially stable. If there were adhesions he might be able to increase his range of movement a little bit by walking, less than 3%, but it would give him a significant improvement in the extent to which the disability impinges on his life. He said it comes down to the reporting of pain. Mr Nguyen has a relatively minimal impairment and says he is more disabled than what would amount to 10% in the Table. With a 10% loss of movement one could still have excellent function.
Dr Whittaker
57. Dr Whittaker, Consultant Rheumatologist, prepared a report dated 21 July 2003 and two reports on 15 November 2005.
58. Following his first examination of Mr Nguyen on 10 July 2003, about two weeks before Dr Newman carried out the arthroscopy, Dr Whittaker assessed Mr Nguyen as having no incapacity resulting from the injury and that he should be fit to return to his normal duties.
59. In his report dated 15 November 2005, he found that Mr Nguyen suffered from no permanent impairment and a normal work capacity with respect of any injuries that may have been sustained on 18 July 2002. He described Mr Nguyen as suffering from ‘intermittent pain in the left ankle’ and commented that to label it a ‘chronic pain condition’ was ‘unhelpful’. Any minor impairment was said to be amenable to an appropriate exercise program. Further he found ‘inconsistent’ tenderness over various aspects of the left forefoot and stated that ‘there is also a considerable non-organic component to his presentation’. The fact he was socialising less demonstrated a possibility he was ‘mildly depressed’. Generally Mr Nguyen’s prognosis was described as ‘good’.
60. In his supplementary report on 15 November 2005, Dr Whittaker stated that he did not consider that Mr Nguyen had any permanent impairment stemming from the 18 July 2002 accident.
Dr Law
61. Dr Law, Consultant Psychiatrist, prepared two reports dated 8 January 2003 and 12 September 2005. He saw Mr Nguyen twice in 2003 (7 January and 21 February). After the two consultations, he had diagnosed Mr Nguyen with a moderate degree of post-traumatic stress disorder (“PTSD”) following on from his work accident, as well as adjustment disorder with depressive symptoms flowing from his perceived “lack of support from rehabilitation staff”. He found that were Mr Nguyen not suffering from PTSD “that has so far not been given due attention” he would probably ‘proceed smoothly’ from working 4 hours per day to 5 or 6 hours per day.
62. The symptoms Mr Nguyen complained of were not sleeping properly, bad dreams, headache, impaired concentration, nervousness, agitation, and jumpiness when he heard unexpected noises, ruminating over the accident and feeling upset when recollecting the accident, loss of appetite and consequently weight. On examination he found Mr Nguyen somewhat dejected and anxious and he became more upset as he described his psychological symptoms, and more distressed and momentarily teary when he said he felt ‘harassed” when told he would not be paid unless he worked 6 hours a day.
63. He commented on Dr Morse’s diagnosis of major depression following examination on 30 March 2005. Dr Law believed Dr Morse could make this diagnosis according to DSM IV criteria, as there was enough information from that doctor’s report. Dr Law could not be certain of a current diagnosis due to the lapse in time since consultation, however, given the two year gap between his consultation and that of Dr Morse, Dr Law ventured “to say that his mental condition should have become stabilised, unless there are unforeseen recent development”. He accepted that it was appropriate for Dr Morse to make a psychiatric rating according to Comcare Guides but did not comment on whether he thought the 10% given was suitable.
Dr Morse
64. Dr Morse, psychiatrist, prepared a report dated 19 April 2005. In summary he described Mr Nguyen’s physical symptoms and disability as follows. He had a painful left ankle and it was hard to walk, it is particularly difficulty in the cold or wet weather. He used a walking stick if going any distance and had it with him. In addition to the fractured ankle, Mr Nguyen said that he had a “twisted nerve” which was the cause of continual pain and discomfort. He had problems walking and if he puts heavy weight on the ankle with lifting, bending and squatting. He used Panadeine forte a lot after the accident but tried not to use it now. He takes Panadol or Tramal.
65. He described Mr Nguyen’s emotional state as follows. He was tearful and sad and presented as depressed, as judged by the quality of his voice and his facial expressions and conversation. He could not reply when asked generally about his emotional state. He was confused and obviously distressed thinking about his condition since the accident. When asked specifically about symptoms of depression, he said he was “so down” and that he had a “lot of depression” in his life. He said he was sad and tearful all the time because he cannot do things he did before, such as playing with his son. He cannot act because of his physical state, his depression and lack of confidence. He used be proud of his acting and enjoyed it. He was an outgoing and engaging person before but now he did not want to see anyone. He avoids people and has changed his telephone number so friends and others do not contact him. He does not have motivation to do things. He feels that his ankle is causing him to walk in a strange manner and he feels self-conscious, and spoke about his different “appearance”. He is upset and worried about his family and his future. He is withdrawn, cannot communicate with his family, is irritable and gets angry with his wife and son for no reason. He is not interested in sexual activity. He feels useless and a failure. He does not go to the shops or where there are lot of people because he is depressed and withdrawn. If he is with people and has to talk, he feels anxious and tense and does not know what to say. His concentration is poor and he is forgetful, he sleeps badly and has terrible dreams and nightmares, and feels tired during the day. He has a poor appetite and has lost weight. He sometimes has tightness in the chest, palpitations and trouble breathing. He has thoughts of suicide but not plans or intent.
66. Given the intensity of Mr Nguyen’s symptoms, Dr Morse diagnosed major depression with melancholia which was, on the balance of probabilities, materially contributed to by his employment. Dr Morse considered “with the shock of the accident but in particular the effect on his physical state, his self-confidence and his self esteem as the cause of the psychobiological change which is major depression”. Dr Morse described Mr Nguyen as feeling as if he had ‘lost control of his life with lowered self-esteem and self-confidence and inability to cope with the ordinary demands of daily life’. He recommended antidepressant medication and a course of psychiatric therapy involving Mr Nguyen seeing a psychiatrist once a week for two or three months, once a fortnight for a further two to three months and then once a month for a further six or so months. The prognosis for the next year or so was described as ‘very poor’ and his condition is ‘deteriorating’.
67. Dr Morse continues “it is always difficult to estimate the outcome of any psychiatric treatment … however, given the effects it has had on his relationships this will take a long time to reverse and he will probably never return to his acting and cultural and other acting activities because of the impact his depression has had on his life. There will be always ongoing problems in his reaction with other people.”
68. Dr Morse found that Mr Nguyen was not fit for his pre-injury work due to his physical state and would have difficulty moving to any other form of work if APC did not leave him in his current position due to his emotional state. He assessed a Psychiatric Impairment Rating Scale of 10% in accordance with the Comcare Guides.
69. During his oral evidence, Dr Morse said that depression makes pain worse by lowering the threshold. He also conceded during cross-examination that Mr Nguyen’s position may be reversible with the medication regime he set out in his report. Dr Morse also said in response to a question about Mr Nguyen not contacting his mother, that in the Asian culture, they do not wish to worry family members back home and there is a cultural attitude of being ashamed of being damaged.
Dr Haik
70. Dr Haik, saw Mr Nguyen on 12 April 2005. He noted that Mr Nguyen walked with a noticeable limp when carrying a well-used walking stick. When asked to walk up and down the room without a stick, there was no gait impairment. On several occasions during the interview he dabbed his eyes with a handkerchief, but there was no other sign of emotional upset. There was no clinical evidence of anxiety or depression. There was no evidence of memory impairment and no clinical evidence of cognitive dysfunction, speech disorganisation, mood or affect disorder or other psychiatric phenomena.
71. Dr Haik set out Mr Nguyen’s complaints to him. He had continual pain which was worst in cold or wet weather, rating 5 out of 10. His pain has plateaued since the July 2003 surgery. It was distal to the left medial and lateral malleoli and extended up to the inner calf. The pain was worst at night and if he walks a lot. Using a walking stick lessened the pain if he walked for long distances. He said that Dr Pham had told him that the pain was from a nerve that was “twisted”. He takes Panadol three or four times a week, and Tramal if the pain increases. He had resumed his normal weight, having lost 8 kgs after the accident. He wakes two or three times a night for 10 or 15 minutes and thinks about how he has lost his normal life and the effect on his life and his family life. Since the accident he is hopeless because his body will not do what he did before. He is embarrassed and does not want to contact anybody because his leg is not normal and has isolated himself. He is an actor and before the accident he was good looking but he does not want to appear in public because he is embarrassed. He has not spoken to his mother since the accident. She lives in Vietnam and was a famous actress. She had been very proud of him and he is now embarrassed because he cannot establish any acting work. He also does not speak to his half-brother who lives with his mother. He gets easily upset with his wife and son and could no longer play with him. Before the accident he had taught his son kung fu and football. He has had no sex with his wife since the accident and had last attempted to about two years ago. He feels guilty about that.
72. Dr Haik referred to reports from Doctors Pham, Newman, Griffith, Chase and Dalton. He commented that the history was quite unusual and “some parts of it may be coloured by cultural influences. Yet, no organic lesion can be found to explain his ongoing symptoms or the inconsistencies evident during his medical examinations.” Dr Haik considered the existence of “functional overlay” and analysed the circumstances in which Mr Nguyen left Vietnam, the difficulties he had in moving to a new country with an unfamiliar language and adversity he suffered in relation to the loss of $50,000 in his restaurant venture, the menial nature of his employment at times, periods of unemployment and the burden of repayments of a home loan. He asked rhetorically “Could he garner aid?”
73. He found the “greatest enigma” was Mr Nguyen’s failure to contact his mother, which he found “decidedly odd”. His reason for not contacting her “did not make sense”. Dr Haik found it difficulty to accept that there were cultural reasons.
74. He said: “Because of the many inconsistencies and contradictions in his history and presentation, his certainty of his skill as an actor and the many hurdles he has confronted in Australia, it might be argued that Mr Nguyen has sought to inexpertly present himself as disabled to gain a windfall which might be otherwise unavailable to him”. … “It would be the most important role in which he has ever participated”.
75. Dr Haik considered various possible psychiatric conditions but considered none could be established. He considered that the closest was Pain Disorder but he regarded it as unlikely because of the plethora of contradictions in Mr Nguyen’s history and presentation. He considered that there was a distinct conscious contribution to his claim of disablement, which excluded the diagnosis. In cross-examination he said that in the case of Pain Disorder, the perception of pain is greater than explicable medically.
OUR FINDINGS
Physical Condition
76. In relation to the physical consequences of the injury, we prefer the evidence of Dr Newman to that of other medical evidence concerning Mr Nguyen’s physical condition where there is a conflict. He was the treating orthopaedic surgeon and gave clear and concise evidence about the physical injury and an objective assessment of Mr Nguyen’s complaints and their relation to his physical injury. We have some doubt about the accuracy of the clinical judgments of Dr Dalton and Dr Whittaker. Both gave opinions to the effect that Mr Nguyen was fit for pre-injury duties and suffered little or no incapacity, a matter of weeks before Dr Newman carried out the arthroscopy in July 2003 and excised dense adhesions. These opinions were not verified by the pathology found at surgery some weeks later. Further, when challenged about his view at that time, Dr Dalton sought to justify his position rather than to make an appropriate concession.
77. We find on the evidence as summarised above, that Mr Nguyen had full range of movement in December 2003 but unfortunately because he did not use his ankle, he has a 10% whole person impairment pursuant to Table 9.2 of the Comcare Guide as found by Dr Newman. Dr Lethlean and Dr Griffith assessed 15% and Drs Chase and Dalton said 5%. We consider that range of opinion supports our finding. Dr Dalton conceded that there was room for error using a goniometer to measure range of movement.
78. We rely on Table 9.2 (assessment in accordance with the range of joint movement) rather than Table 9.5 which relies on the subjective description of the patient. In this case, Mr Nguyen’s descriptions of his level of physical impairment arising from the injury are not reliable.
79. Mr Nguyen is therefore entitled to compensation pursuant to s 24 and s 27 in relation to 10% whole person permanent impairment of his left ankle caused by the injury pursuant to Table 9.2 of the Comcare Tables.
80. On the evidence of Dr Newman, Dr Chase and Dr Dalton, we find that Mr Nguyen does not suffer from chronic regional pain syndrome, reflex sympathetic dystrophy or complex regional pain syndrome.
81. As Dr Newman concluded, on 12 December 2003, that he had nothing further to offer Mr Nguyen in terms of on-going management, we find that at that time and to date, Mr Nguyen was not and is not incapacitated for his pre-injury duties driving a forklift as a consequence of the physical effect of the injury. He is not entitled to compensation pursuant to s 19 in respect of the physical injury.
82. Mr Nguyen does suffer some pain and discomfort arising from the injury, including from low grade degenerative arthritis. From to time he takes medication for pain relief, some of which is prescribed by his general practitioner. He is entitled to compensation pursuant to s 16 of the Act.
Psychiatric Condition
83. In relation to the issue of psychiatric condition, we prefer the evidence of Dr Morse to that of Dr Haik. In 2003 Dr Law diagnosed Mr Nguyen to be suffering from psychiatric conditions arising from the injury. Two years later, Dr Morse diagnosed major depression with melancholia which was materially contributed to by his employment. Mr Nguyen’s complaints are not consistent with his physical condition. In summary, Dr Haik does not believe Mr Nguyen is genuine when he describes his psychological symptoms and the effect on his life of this injury. While there is undoubtedly exaggeration of the physical disability, we accept that Mr Nguyen is genuine. He was very proud of his physical appearance and ability and the injury has affected him adversely. There may be a cultural element to his reaction, we do not know. As Dr Morse described, Mr Nguyen’s self-esteem and self-confidence have been adversely affected by the injury. We find that Mr Nguyen suffers major depression with melancholia as a consequence of the injury which at present prevents his resuming his pre-injury duties which involved operating the kind of forklift he was using at the time of the accident.
84. Quite properly, Dr Morse conceded during cross-examination that Mr Nguyen’s condition may be reversible if the medication regime he suggested were implemented. We find that Mr Nguyen’s has no permanent impairment arising from his psychiatric condition.
85. We therefore find that Mr Nguyen is incapacitated by his psychiatric condition such that he is unable to resume his pre-injury job and requires treatment for that condition. He is therefore entitled to compensation pursuant to s 14, s16 and s 19 of the Act. He is not entitled to compensation pursuant to 24 and 27 of the Act for the psychiatric condition.
Decision
86. For the reasons given above, we set aside the reviewable decision in each proceeding and remit the matters for reconsideration in accordance with our findings.
I certify that the 86 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member, Mrs Josephine Kelly and Dr Max Thorpe
Signed: Miss Sacha Keady
AssociateDate/s of Hearing 7 to 10 February 2006
Date of Decision 20 March 2006
Counsel for the Applicant Ms L Walker
Solicitor for the Applicant Slater and Gordon
Counsel for the Respondent Mr N Chen
Solicitor for the Respondent Sparke Helmore
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